Willmar Electric Service

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 245 (N.L.R.B. 1991)

245
303 NLRB No. 33
WILLMAR ELECTRIC SERVICE
1 All dates are in 1988, unless otherwise indicated.
Willmar Electric Service, Inc. and International
Brotherhood of Electrical Workers, Local
Union No. 46 and Michael C. Hendrix. Cases
19–CA–20137 and 19–CA–20138
May 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 1, 1989, Administrative Law Judge
Richard J. Boyce issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the Charging Parties filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, as further explained below, and to adopt the
recommended Order.
The sole issue remaining in dispute in this case is
whether the judge correctly concluded that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
refusing to hire Michael Hendrix, who was employed
full time as an organizer for the Union at the time of
his application for a job with the Respondent. In ex-
ceptions, the Respondent contends, inter alia, that it
could lawfully refuse to hire Hendrix on the basis of
his status as a paid union organizer because such an
individual is not an employee within the meaning of
Section 2(3) of the Act. For the reasons set forth
below, we find no merit in this argument.
Michael Hendrix is a journeyman electrician. On
June 23, 1988,1 Hendrix began working as a full-time
field organizer for the Union. During June and July,
Hendrix contacted the Respondent about entering into
an agreement with the Union for the Respondent’s
electrical subcontracting project at a J. C. Penney store
under construction in Silverdale, Washington. For the
remainder of the year, Hendrix had frequent conversa-
tions with the Respondent’s officials about this subject.
Beginning on or about August 30 and continuing
into January 1989, Hendrix also communicated on sev-
eral occasions with the same officials about job pros-
pects both for himself and for other local union mem-
bers. On October 14, Hendrix delivered his own and
another electrician’s completed job applications to the
Respondent’s project foreman, Douglas Rose. These
were the first local job applications received from out-
side the company. In subsequent communications with
the Respondent’s officials, Hendrix expressed his con-
tinuing interest in working for the Respondent, noting
in particular the appeal of a jobsite close to his resi-
dence. On December 30, Hendrix telephoned Rose and
asked if the Respondent was hiring and had considered
his application. Rose stated he was hiring but had not
considered Hendrix’s application because ‘‘it’s kind of
hard to hire you when you’re out there on the other
side, picketing.’’ (Hendrix had engaged in area stand-
ards picketing and handbilling protests at the Respond-
ent’s jobsite from November 30 until December 15.)
Hendrix told Rose to consider him seriously for a job,
that obtaining employment to carry out field orga-
nizing responsibilities is customary activity for field
organizers, and that Hendrix would be organizing dur-
ing lunch and after work. The Respondent never of-
fered Hendrix a job.
Although not mentioned in the judge’s decision,
Hendrix testified that union officials knew about his
application for employment by the Respondent, but
that he received no direction from the Union to seek
employment with the Respondent. Hendrix testified
that seeking employment was normal activity for field
organizers. In his testimonial opinion, he would have
to take a leave of absence from employment with the
Union if hired by the Respondent, but he would retain
his title as field organizer. He also testified that he
would be paid only by the Respondent for work per-
formed for it. He did not know whether the Union
would reimburse him for any shortfall in compensa-
tion, but he was willing to take a reduction in pay to
work for the Respondent.
As set forth fully in the judge’s decision, he found
that during December and January 1989 the Respond-
ent manifested an antiunion hiring policy through the
violation of Section 8(a)(3) in refusing to hire appli-
cant Haugen and through several antiunion statements
made by Rose in violation of Section 8(a)(1). There
are no exceptions to these findings. The judge also
concluded that the Respondent violated Section 8(a)(3)
by refusing to hire Hendrix because of his union ac-
tivities. In the discussion supporting this conclusion,
the judge stated, ‘‘That Hendrix was a paid, fulltime
union organizer, intent upon organizing Respondent’s
employees, is of no moment.’’ In support of this state-
ment, the judge cited H. B. Zachry Co., 289 NLRB
838 (1989), in which the Board found an unlawful re-
fusal to hire a paid, full-time union organizer. In its
exceptions, the Respondent supports its argument that
paid full-time union organizer Hendrix is not a pro-
tected employee within the meaning of Section 2(3) of
the Act by reference to the opinion denying enforce-
ment of the Board’s Order in H. B. Zachry Co. v.
NLRB, 886 F.2d 70 (4th Cir. 1989), a decision that
issued after the judge’s decision in this case.
After careful review of the Fourth Circuit’s analysis
in Zachry, we adhere to the Board’s holding in that
case that individuals who are full-time paid union or-
ganizers while applying for a job are protected Section
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 It is a well-established principle of Board law that the Sec. 2(3) definition
of employee includes applicants for employment. Accordingly, prospective em-
ployee applicants are entitled to the same statutory protection against antiunion
discrimination as current employees, Phelps Dodge Corp. v. NLRB, 313 U.S.
177 (1940); and paid union organizers are entitled to the same protected Sec.
2(3) status as other applicants, Oak Apparel, 218 NLRB 701 (1975). An em-
ployer may, however, lawfully refuse to hire a statutorily protected employee
applicant, including a paid union organizer, on the basis of a nondiscrim-
inatory policy against hiring any individual who, for example, seeks only tem-
porary employment, applies while working for another employer, or intends
to work simultaneously for more than one employer. The Respondent here did
not prove that it refused to hire Hendrix pursuant to any such nondiscrim-
inatory policy. In this regard, we reject the Respondent’s contention that it did
not hire Hendrix because he was only interested in a foreman’s job for the
reasons discussed by the judge.
3 H. B. Zachry Co. v. NLRB, supra at 73.
1 Sec. 8(a)(3) forbids an employer from ‘‘discriminat[ing] in regard to hire
or tenure of employment to encourage or discourage membership in any labor
organization.’’ Sec. 8(a)(1) prohibits an employer from ‘‘interfer[ing] with,
restrain[ing], or coerc[ing] employees in the exercise of the rights guaranteed
in Section 7’’ of the Act. Sec. 7 guarantees employees ‘‘the right to self-orga-
nization, to form, join, or assist labor organizations . . . and to engage in
other concerted activities for the purpose of collective bargaining or other mu-
tual aid or protection . . . .’’
2(3) employees who cannot be discriminatorily denied
employment simply on the basis of that union activity
or status.2 In any event, we find that this case is factu-
ally distinguishable from Zachry on points critical to
the Fourth Circuit’s determination that the paid union
organizer there should be excluded from the statutory
definition of employee.
In Zachry, the court held that an employer could
lawfully reject a job applicant who would be simulta-
neously paid and supervised by the union. In support
of this holding, the court emphasized stipulated evi-
dence that Edwards, the paid union organizer/job appli-
cant at issue, planned to remain concurrently employed
and supervised by the union during his hours of work
for Zachry and would have been performing services
for Zachry only because directed to do so by the
union. In addition, the union would have paid Edwards
for the difference between his salary at Zachry and his
full union salary, for his health, life insurance, and
pension benefits, and for daily transportation expenses
and living expenses related to the Zachry job.
Here, by contrast, Hendrix’s uncontroverted testi-
mony is that: he received no specific direction from
the Union to seek employment with the Respondent; if
hired by the Respondent, he would have to take a
leave of absence from employment by the Union; he
would limit any organizational activity to personal
time at lunch and after work; he would not receive di-
rection from the Union during hours of work for the
Respondent; he was willing to take a reduction in pay
to work for the Respondent; and he did not know
whether the Union would reimburse him for any short-
fall in compensation. In sum, although Hendrix clearly
intended to serve the Union’s organizational interests
as an employee of the Respondent, there is no affirma-
tive evidence that Hendrix planned to remain concur-
rently employed, directed, or compensated by the
Union for time spent working for the Respondent. Fur-
thermore, there is no evidence that Hendrix would ter-
minate his job with the Respondent at the end of any
organizational campaign rather than at the completion
of a job project conveniently close to his home.
Although we adhere to the Board precedent set in
Zachry and cases cited therein, we believe that the
aforementioned circumstances in this case indicate that
Hendrix would not have been ‘‘[an employee] working
for two different employers at the same time and for
the same working hours.’’3 Therefore, his job applica-
tion did not raise the same concerns about divided em-
ployment loyalties and interests which underlay the
Fourth Circuit’s conclusion in Zachry that paid orga-
nizer Edwards was not entitled to antidiscrimination
protection as an employee within the meaning of Sec-
tion 2(3) of the Act.
Based on the foregoing, we find that Hendrix was
an employee within the meaning of Section 2(3). In
agreement with the judge’s analysis of the Respond-
ent’s motivation for refusing to hire Hendrix, we af-
firm the finding that this refusal violated Section
8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Willmar Electric Service,
Inc., Silverdale, Washington, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Max Hochandel, Esq., for the General Counsel.
Judd Lees, Esq. (Williams, Kastner, & Gibbs), of Bellevue,
Washington, for the Respondent.
John Burns, Esq. (Hafer, Price, Rhinehart & Schwerin), of
Seattle, Washington, for the Union.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge. This mat-
ter was tried in Seattle, Washington, on April 6 and 7, 1989.
The consolidated complaint, based on charges filed by Inter-
national Brotherhood of Electrical Workers, Local Union No.
46 (the Union) and Michael C. Hendrix, an individual, issued
on February 22, 1989, and alleges that Willmar Electric
Service, Inc. (Respondent) violated Section 8(a)(3) and (1) of
the National Labor Relations Act (the Act) by failing to em-
ploy Hendrix and Allen Haugen for its job on a J. C. Penney
store in Silverdale, Washington, in late 1988.1
The complaint also alleges that Respondent, by its project
foreman, Douglas Rose, independently violated Section
8(a)(1) in seven instances in late 1988 and early 1989: by
asking a job applicant in November if he was ‘‘connected
with a union,’’ by subsequently telling an employee there
was ‘‘no way [he] would hire any union people,’’ by asking
247WILLMAR ELECTRIC SERVICE
2 Mirroring this, Rose states in his affidavit that he does ‘‘all the reviewing
and final approval of applications locally.’’
3 Thus, Imdieke went on, an employee in Danville, Virginia, ‘‘mentioned he
belonged to a local . . . in the last couple of months.’’
an applicant on about December 28 if his previous employers
‘‘were union contractors,’’ by telling an applicant on about
December 30 that it would be ‘‘hard to hire’’ him and that
Rose ‘‘would not do so’’ because the applicant had picketed
at the jobsite, by asking an employee on about January 9 if
he knew their ‘‘little union buddy’’ Hendrix, by telling an
employee on about January 16 that a no-applicants sign at
the jobsite ‘‘was intended only for applicants affiliated with
a union,’’ and by asking an employee on about February 7
‘‘if he had been contacted by an agent of the [National Labor
Relations] Board.’’
I. JURISDICTION, LABOR ORGANIZATION
Respondent is a multistate electrical contractor headquar-
tered in Willmar, Minnesota. The complaint alleges, the an-
swer admits, and I conclude that it is an employer engaged
in and affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties also agree and I conclude that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Evidence
Respondent is the electrical subcontractor on a J. C.
Penney store under construction in the Silverdale Mall,
Silverdale, Washington. Douglas Rose, a journeyman elec-
trician, is its project foreman. He reports to Bryan Johnson,
regional projects manager, who is located in Aurora, Colo-
rado, and to Johnson’s superior, Timothy Imdieke, operations
manager, who works out of the home office in Willmar.
Imdieke testified that, while he and Johnson ‘‘work together
with’’ Rose as concerns hiring for the Silverdale project,
Rose is empowered to hire independently within prescribed
manpower limits.2
Respondent contracted for the job in the early summer of
1988; and Rose, unassisted, started doing preliminary work
on the site in August. Rose hired his son, Todd, as an ap-
prentice in early September. Jack Hitt, a journeyman recently
on another of Respondent’s projects, joined the crew in mid-
October. Rose’s affidavit states that Hitt was ‘‘responsible
for orienting the newer employees to the work’’ as later
hirings occurred. The complement grew to 10 on January 3
and 4, with the addition of 3 journeymen and 4 apprentices.
All seven came from the surrounding area and none had
worked for Respondent before.
Respondent thereafter continued to hire apprentices or
trainees from the surrounding area. The several journeymen
it later hired had been on its payroll before, however, and
came from afar.
Imdieke testified that Respondent has been party to a
union contract only once that he knows of, on a 1984
project. Asked if Respondent ever hired union members,
Imdieke testified, ‘‘That’s a tough one’’; then added, ‘‘I basi-
cally wouldn’t know . . . but at times [employees] have
mentioned that they belong to an organization.’’3 Rose testi-
fied that he does not have the ‘‘slightest idea’’ if the
Silverdale payroll includes members, nor does he ‘‘really
care.’’ The record contains no evidence that any of those
hired for that project was then a member.
Hendrix is a journeyman electrician. He has been a full-
time field organizer for the Union since June 23, 1988, hav-
ing taken a leave of absence from his position with an elec-
trical contractor.
In late June, upon learning that Respondent would be the
electrical subcontractor on the Penney project, Hendrix called
Imdieke, asking about Respondent’s manpower needs.
Imdieke said he had not ‘‘looked at’’ the situation yet, but
probably would be getting to it ‘‘in a couple weeks.’’
Hendrix called again in mid-July, expressing an interest ‘‘in
sitting down and talking . . . about a contract’’ for the
project. Imdieke told him to send a copy of the Union’s
standard contract, and that he would ‘‘get with’’ his boss
about it.
Hendrix thereupon mailed Imdieke a rough draft of the
Union’s newly ratified contract. The two then had a tele-
phone conversation on July 25, in which Imdieke said that
Respondent was ‘‘not interested in signing any kind of agree-
ment, but . . . would be interested in looking at some of [the
Union’s] people.’’ That was followed by a letter from
Hendrix to Imdieke, dated July 27, in which he proposed ‘‘a
one-project agreement that will not bind you on any other
projects in the country.’’
Hendrix first met Rose on a visit to the jobsite on August
30. Introducing himself as a union organizer and tendering
his business card, he asked Rose about job prospects and, as
he had with Imdieke, broached the idea of Respondent’s
signing a project agreement. Rose responded that ‘‘things
were really slow’’ on the project, the implication being that
those matters were of no immediate concern, and the con-
versation turned to hunting and fishing.
In the aftermath of this first encounter with Hendrix, Rose
entered in his daily job log:
IBEW labor organizer came to jobsite, seems to have
vast knowledge of [Respondent]. Wants us to sign a
labor agreement, said he has talked to Tim, etc. Mostly
small talk but what he comes out with gives me the im-
pression that they have targeted [Respondent] for the
infiltration of union members.
Rose’s log reveals that he and Hendrix had a second con-
versation on September 1, with Hendrix saying he would like
to have a job application form before Rose began hiring.
Hendrix added that he was not working in the trade, accord-
ing to the log, and summarized his qualifications as an elec-
trician. Rose responded that he had no applications. Fol-
lowing that conversation, still tracking the log, Rose ‘‘dis-
cussed the union issue’’ with Imdieke and Johnson, and they
‘‘decided to not give out applications until all angles have
been checked.’’ Asked what he meant by ‘‘all angles,’’ Rose
testified: ‘‘You’ll have to ask them [Imdieke and John-
son]. . . . That was the reply I got when I talked to Tim.’’
On September 2, Rose and Johnson resumed the previous
day’s conversation. Rose’s log states: ‘‘Discussed hiring poli-
cies concerning union help, discrimination.’’ The record pro-
vides no additional information concerning the exchange.
Rose testified that he also spoke with the Associated Build-
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Hendrix testified that he would have taken ‘‘whatever they had’’; that he
‘‘would have went to work as a grunt for them.’’
5 Hendrix entered two dates on his application: September 28 at the top and
October 10 on the signature line. He testified that he began filling it out on
September 28 and finished on October 10.
6 Imdieke testified that his ‘‘general practice and a good practice’’ regarding
the hiring of foremen is: ‘‘It’s got to be somebody I know and somebody that
came up through the ranks.’’
ers and Contractors, to which Respondent belongs, at about
this time; and was told, in answer to his queries about the
Union, that it is ‘‘bad news.’’
Hendrix continued to call on Rose with some regularity.
In the early visits, at least, they chatted congenially and at
length about hunting and fishing, although Hendrix generally
interjected the subjects of an agreement and hiring, as well.
According to Rose’s affidavit, his customary rejoinder, when
Hendrix raised those subjects, was that Respondent ‘‘went
through the State for applicants’’ and that it was ‘‘nonunion
and wanted to stay that way.’’
On September 7, Hendrix asked Rose for an application.
Rose replied that he had none; that he thought the home of-
fice ‘‘was going to do the hiring’’ and Hendrix therefore
should ‘‘contact’’ it; and that Respondent ‘‘probably’’ would
not need help until about December. Hendrix, in his role as
field organizer, consequently wrote Imdieke on September 9,
stating:
I have been in contact with your foreman . . . in
Silverdale, Washington. He has indicated to me that
your office would be doing the hiring in Willmar.
I am still interested in signing a project agreement
with your Company and offering our qualified Journey-
men to your Company. Please consider this offer.
Doug [Rose] said that he did not have any employ-
ment applications on site and that I should contact you
at your office. Would you please send me one of your
application [sic].
First conferring with Respondent’s labor attorney in Min-
neapolis, Imdieke mailed Hendrix an application on about
September 16.
In late September, Rose told Hendrix that he foresaw a
crew of ‘‘somewhere around 10 to 15’’ electricians, and that
he was ‘‘going to pursue’’ local hiring.
On October 14, Hendrix delivered two completed applica-
tions to Rose, one being his own. Rose testified that these
were the first he had received ‘‘except for people within the
company.’’ He and Hendrix had a ‘‘very brief’’ attendant
conversation, in which Hendrix ‘‘verified’’ his work experi-
ence and stated, as he was to do several times, that a job
with Respondent especially appealed to him because ‘‘it’s
right over the hill from [his] house.’’
Where his application asked for ‘‘Position Desired,’’
Hendrix entered: ‘‘Journeyman-Foreman Electrician.’’ Rose
inferred from this, so he testified, that Hendrix was interested
only in being a foreman. Hendrix testified that he did not tell
Rose this, however, and the record contains no intimation
that Rose questioned him on the point.4
Rose sent Hendrix’s application, but not the other one, to
Imdieke. In his covering note, he stated:
Mike Hendrix came in today and left two applica-
tions. Please note the date of the application.5 In read-
ing over his application I’ve noticed he is applying for
a foreman position. He also states he has had a strained
back. Also, you’ll notice he is presently working for
21.00.
The way I see it, he is already working, has a ques-
tionable back, and if he was hired as a foreman, I’d
have nothing to do. My opinion is WES should not hire
him at this time, however, you may have a position for
him up there. I’ll keep in touch.
Upon receiving the application, Imdieke again conferred
with Minneapolis counsel. He testified that he then ‘‘talked
briefly’’ with Rose, who remarked that Hendrix was seeking
his foreman’s job; and that he, Imdieke, rejoined: ‘‘Well,
that’s not my policy. He wouldn’t be foreman.’’6
On November 7, journeyman Newell Casavant submitted
an application. He testified that Rose mentioned in the ac-
companying conversation, that Hendrix had ‘‘come by’’ and
that Respondent ‘‘might be going union’’; and asked
Casavant ‘‘how [he] felt about that.’’ Casavant assertedly re-
plied that ‘‘it didn’t bother’’ him.
Another journeyman, Jerry Jones, applied on November
17. The following week, he testified, he told Rose he had
gained his experience ‘‘through the Union,’’ prompting Rose
to ask if he was ‘‘still affiliated with the Union’’ and how
he felt ‘‘about working for a nonunion shop.’’ Jones replied,
as he recalled, that he had ‘‘hard feelings against’’ the Union
and was no longer a member; and Rose remarked, ‘‘Well,
you don’t have to worry, because Willmar Electric is non-
union and it intends on staying nonunion.’’
Rose admittedly asked Jones how he felt about working
for a nonunion shop. He explained:
I asked a lot of people that. I ask that because of the
possibility of picketing, and I asked people a lot of
times, ‘‘Do you have any problems crossing the picket
line, does that bother?’’ . . . There are several ques-
tions like that, just general stuff.
Jones further testified that Rose told him, in November,
that he ‘‘liked to hire locally because you could give the
economy a boost,’’ and that he intended to hire from 16 to
20 people.
On November 30, Hendrix and two others began picketing
Respondent at the jobsite. The signs stated: ‘‘Willmar Elec-
tric, Substandard Wages.’’ Picketing continued until Decem-
ber 15. Hendrix estimated that he participated ‘‘the majority
of the time.’’ The picketing was preceded by letters to Re-
spondent and the general contractor, on union stationery and
signed by Hendrix, detailing the inadequacy of Respondent’s
wages and benefits relative to area standards, and informing
them of the impending picketing. Hendrix and others distrib-
uted leaflets at the site, as well.
On December 14, as revealed by the records of the Wash-
ington State Employment Service, Rose advised its Bremer-
ton office that Respondent ‘‘need[ed] journeymen and other
experienced electricians.’’ Rose’s affidavit states that, while
he did not specify how many employees he was seeking, he
‘‘was actually looking for . . . 5 journeymen and 4 or 5 ap-
prentices on this job.’’ Then, on December 27, as disclosed
by Employment Service records, Rose told it that Respondent
249WILLMAR ELECTRIC SERVICE
7 Haugen later testified that either Rose or the Employment Service told him
this, and that he ‘‘believe[d] it was [in] the phone conversation with Mr.
Rose.’’
8 Rose states in his affidavit that, before Haugen’s arrival on the December
28, he ‘‘had already called the State to tell them [he] was full earlier that
day.’’ He acknowledged in his live testimony that he could not recall that.
9 Rose’s affidavit asserts that he ‘‘did not ask [Haugen] any questions about
his union affiliation,’’ but that he ‘‘did tell him it was a nonunion job.’’
Haugen had asked if it was ‘‘a union job,’’ according to the affidavit, and of-
fered that his last job ‘‘was union.’’
10 Hendrix opined that, if hired by Respondent, he would retain his title as
field organizer, but that his pay ‘‘would stop from the IBEW.’’ He did not
know if the Union would make up the difference should working for Respond-
ent entail a pay cut.
11 Lesh never did hear from Rose. He testified that a past employer listed
on his application, Evergreen Electric, is ‘‘a union outfit.’’
12 The record is unsettled regarding the date of receipt. Hendrix’s cover let-
ter is dated December 21, Rose’s affidavit states that he received the applica-
Continued
had ‘‘all the inexperienced help needed,’’ but still invited the
referral of ‘‘journeymen and other experienced electricians.’’
This stood until January 13, when Rose instructed the Em-
ployment Service that Respondent’s needs had been met.
These records and his affidavit to the contrary, Rose testified
that he was ‘‘mostly looking for apprentices’’ when he
placed the December 14 order, because he ‘‘had made up
[his] mind who [he] was going to be putting on as a journey-
man already’’; and that he was not seeking journeymen in
late December inasmuch as he ‘‘had made a decision to put
on’’ Casavant, Jones, and one Ray Gauthier ‘‘prior to’’ that.
Haugen, a journeyman electrician and a member of the
Union, entered the picture on December 28. Having obtained
an introduction card from the Employment Service, he called
Rose that afternoon, requesting an interview. Haugen testi-
fied that Rose asked if he was a journeyman or a trainee;
exclaimed, ‘‘Oh, great!’’ upon Haugen’s saying he was the
former; and urged Haugen to come to the site ‘‘right away.’’
Rose also stated, per Haugen, that Respondent ‘‘had all the
trainees [it] needed,’’ but that he still ‘‘wanted’’ journey-
men.7 Rose concedes that Haugen ‘‘probably’’ identified
himself as a journeyman; and that he in turn said, ‘‘Good,’’
and invited Haugen to come to the site. He denies telling
Haugen, however, that he ‘‘need[ed] journeymen.’’
Haugen arrived at the site and filled out an application a
few minutes later. He testified that others also were filling
out applications; that he heard Rose ask another, unidentified
person, ‘‘How many of these guys do you want?’’; and that
the other person replied, ‘‘As many as you can get.’’
When Haugen handed his application to Rose, Rose asked
about his work experience. Haugen answered that he had had
‘‘a lot of experience working at the mall,’’ including nine
months during its construction and in the Sears and Bon
Marche stores. Rose then asked if Haugen’s past employers
were unionized, according to Haugen, and he said they were.
Rose presently brought the interview to an end, Haugen testi-
fied, by saying the application ‘‘look[ed] good,’’ and that he
would ‘‘make a few phone calls and . . . get back to’’
Haugen.
Rose would have it, on the other hand, that he said Re-
spondent ‘‘didn’t need any more journeyman electricians,’’
that he had ‘‘made up [his] mind who [he] was going to hire
already,’’ and that he ‘‘would put [Haugen’s] application in
the file.’’8 Asked if he inquired about Haugen’s union status,
Rose answered, unresponsively, that he was ‘‘very busy that
day,’’ and that his exchange with Haugen was ‘‘just a quick
where-have-you-been-working, are-you-from-the-area type of
thing.’’9
On December 30, Hendrix called Rose, asking if he was
hiring; and, by Hendrix’s account, this exchange ensued:
Rose: ‘‘Yes, we’re hiring right now, looking for
guys.’’
Hendrix: ‘‘Have you considered my application?’’
Rose: ‘‘Which one?’’
Hendrix: ‘‘Mine.’’
Rose: ‘‘Oh, not really.’’
Hendrix: ‘‘Why not?’’
Rose: ‘‘Well, it’s kind of hard to hire you when
you’re out there on the other side, picketing.’’
Hendrix: ‘‘I’m not picketing anymore.’’
Rose: ‘‘You were picketing.’’
Hendrix: ‘‘Well, I’m not anymore.’’
Rose did not explicitly deny any of the foregoing in his
live testimony. But, asked if he recalled telling Hendrix ‘‘he
would not be hired because he picketed the company,’’ Rose
replied, ‘‘No, I do not.’’ In his affidavit, on the other hand,
he denies telling Hendrix ‘‘that [he] could not hire him be-
cause he was picketing and/or was on the other side.’’
The remainder of the conversation, by more or less mutual
agreement, consisted of Hendrix’s saying he was experienced
in the ‘‘kind of work’’ Respondent was doing and would do
‘‘a good job’’; that all his past employers ‘‘would give [him]
an A-1 rating’’; and that he had been ‘‘in the industry for
10 years.’’ Hendrix also told Rose that, if hired, he ‘‘would
be organizing during the lunch hour.’’ He then suggested that
Rose ‘‘wouldn’t like that,’’ and Rose agreed. Hendrix testi-
fied that to ‘‘obtain employment . . . to carry out . . . field
organizing responsibilities’’ is ‘‘normal activity for field or-
ganizers.’’10 As the conversation wound down, Rose said he
‘‘hadn’t looked at’’ Hendrix’s application. Hendrix urged
that he ‘‘seriously take a look at it and consider [him] for
a job,’’ and that he ‘‘let [him] know one way or the other.’’
Among the entries in Rose’s log for December 30 is this:
Mike Hendrix said he’d like to come to work with our
understanding that he would be trying to organize the
crew during lunch and after work.
During the first week of January, journeyman Joseph Lesh
gave Rose his application. Lesh testified that Rose told him
he ‘‘would be hiring’’ and would ‘‘get back to’’ Lesh.11
On January 4, not having heard from Rose, Haugen tele-
phoned the job. Rose’s wife, Sandra, employed as Respond-
ent’s secretary, answered, saying Rose was busy and to call
back in half an hour. Sandra testified that she then spoke to
her husband, who told her he was no longer hiring. When
Haugen called back, Sandra said Respondent had ‘‘hired all
the people [it was] going to hire,’’ but would keep his appli-
cation on file. Haugen, voicing the suspicion that he was not
hired because he is ‘‘union,’’ asked to speak to Rose, saying
he wanted to ‘‘explain some things.’’ Sandra said Rose was
too busy to come to the phone, terminating the conversation.
Apparently on January 4, as well, Rose received a ‘‘clus-
ter’’ of six applications sent by Hendrix.12 One had been
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions on about the December 27, and Rose’s log states that he got them on
the January 4. The log presumably is the most reliable.
13 Upon his receipt of them, Rose sent the six applications to Respondent’s
Minneapolis counsel.
14 The State Employment Service questioned Respondent whether it was hir-
ing around union members.
filled out and signed by journeyman Dwayne Macomber; the
others had been filled out and signed by Hendrix on behalf
of people on the Union’s out-of-work list from whom he had
obtained permission. On January 6, Macomber called Rose
about the status of his application. Rose ‘‘expressed igno-
rance of it,’’ as Macomber recalled, but said he would check
and call back.13 Rose called the next day, reporting to
Macomber that he had ‘‘only just received’’ the application,
that ‘‘all positions were filled,’’ and that he would keep the
application on file.
By letter dated January 6, Rose returned the six applica-
tions to Hendrix. The letter states, variously, that Respond-
ent’s practice’’ is to ‘‘hire employees on an individual basis
or, when necessary, through a local job service,’’ and not
‘‘through any other organizations, recruiters, etc.’’; that those
‘‘seeking employment in the electrical field should apply in
writing a letter, along with their resume,’’ to the home of-
fice; and that, ‘‘at the present time, we have filled our em-
ployment needs for this project.’’
Macomber testified that he called Rose again a couple
weeks later, and that Rose said the six applications ‘‘were
unacceptable,’’ explaining that Respondent ‘‘couldn’t accept
applications from a labor organization.’’ Macomber asked if
Respondent had rejected his application because of his union
membership, he recounted, and Rose answered, no, that Re-
spondent had ‘‘union people on the job.’’
Rose did not address these conversations with any speci-
ficity in his testimony. Asked generally if he ever said
‘‘there was no way [he] would hire any union people,’’ he
testified:
I don’t believe I made that statement at all. That would
be a silly thing for me to say. We joke around a lot.
I just would not say that, no.
On January 9, a Monday, Rose asked apprentice employee
Lafayette (Dean) Brooks, if he knew Hendrix. Hendrix had
passed out leaflets at the site the previous Friday, engaging
Brooks in a several-minute conversation as Brooks left the
job. Not knowing Hendrix by name, Brooks asked Rose
whom he was referring to. Rose answered that Hendrix was
‘‘our little union buddy.’’ Brooks then affirmed that he had
spoken with Hendrix. Rose testified that he called Hendrix
his ‘‘little union buddy on several occasions’’ in conversa-
tion with employees.
On January 14, Haugen called again, this time speaking to
Rose. He stated that he did not intend ‘‘to cause any union
problems at all’’; that ‘‘a union person can do a high-quality
job and not cause any problems.’’ Rose shot back that
‘‘being a union member or not ha[d] no bearing’’ on his hir-
ing decisions; that Haugen was ‘‘not the only one that had
called and said’’ the contrary; and that he was ‘‘tired of
hearing that.’’14 Rose added that he would not be hiring
again ‘‘till June or July.’’
In mid-January, Jones, one of the three journeymen to start
on January 3–4, told Todd Rose that he had a friend who
would make a good apprentice for Respondent, but that he
was discouraged from pursing the matter because of the re-
cently-posted sign that Respondent was not accepting appli-
cations. Todd came back: ‘‘[T]hat’s just for the Union. If
he’s any good, just tell my father, and they’ll just bypass
that.’’
Soon thereafter, Rose asked Jones if he knew of a good
prospect. Jones answered, ‘‘Yes, but your sign says that
you’re not taking applications.’’ Rose stated, by Jones’
uncontradicted account, that the sign was ‘‘just for the
Union’s benefit.’’ Jones’ friend, Steve Medlock, submitted an
application on January 20 and was promptly hired.
Rose admittedly continued to take applications despite the
sign. He denies, however, that the sign was calculated to thin
out union-member applicants. The reason for it, he testified,
was that he ‘‘did not have time for a lot of people coming
in and out’’ because ‘‘there were some changes in J.C.
Penney’s plans that needed to be addressed immediately.’’
On January 17, Rose fired Dean Brooks. Jones testified
that Todd Rose had commented, the day before: ‘‘Well, we
found out who the union rat is. It’s a guy named Dean
Brooks.’’ Todd went on, according to Jones, that Respondent
would remain nonunion ‘‘by not hiring union people’’; that
his dad ‘‘puts a check on people somehow’’ and ‘‘wouldn’t
hire’’ anyone known to be ‘‘for the Union.’’ Jones’ recital
continued that, after Brooks’ termination, Todd remarked that
Respondent had ‘‘killed two birds with one stone’’ inasmuch
as Brooks ‘‘was not a good worker’’ and was ‘‘a union sym-
pathizer.’’ The record contains no evidence that Todd Rose
performed supervisory or managerial functions for Respond-
ent. He lived and often commuted to the job with his father,
however; and Rose conceded—‘‘sure’’—that he talked to
Todd about the union situation on the project.
On February 7, Jones testified, Rose said to him that an
agent of the NLRB had called Casavant; then asked if the
agent had called him. Rose, averring that Casavant had ‘‘vol-
unteered’’ to him that he had been called by a Board agent,
admitted that he later conversed with Jones and other em-
ployees whether they had been called. Rose termed it ‘‘just
common jobsite banter.’’ The Board agent was investigating
the charges underlying the complaint herein.
Respondent offered neither Hendrix nor Haugen a job.
Asked why he did not make an offer to Hendrix, Rose testi-
fied:
I didn’t think he was serious at all. I thought he was
very serious about maybe putting some people from his
organization on at work, but I didn’t think that he was
serious at all in his venture to go to work for Willmar
Electric.
Rose testified that he did not take Hendrix’s application
seriously ‘‘because he was full-time working, expressed that
he enjoyed his job very much, why come to work for me?’’
Two of the journeymen who began on January 3–4, Jones
and Ray Gauthier, had their own electrical-contracting busi-
nesses, however, and were hired with the understanding that
they would be leaving if their businesses picked up. Gauthier
accordingly did leave in late January, to meet the needs of
his business; then returned, on a part-time basis, in March.
Attempting to distinguish the Hendrix situation from those of
Gauthier and Jones, Rose testified, ‘‘It had to do with he was
very happy with what he was doing and had no intention of
quitting . . . and coming to work.’’ Rose concededly ‘‘didn’t
251WILLMAR ELECTRIC SERVICE
15 Even so, according to Imdieke, Respondent generally does not keep elec-
tricians on the payroll between projects. The weight of evidence indicates that
the so-called transferees are treated as new hires at the next project. Respond-
ent does not pay their moving expenses.
16 Rose admittedly asked Jones how he felt about working for a nonunion
shop, and did not disavow the other remarks attributed to him by Jones.
17 269 NLRB 1176 (1984).
18 Sunnyvale Medical Clinic, 277 NLRB 1217, 1217 (1985), explaining
Rossmore House.
19 Gilberton Coal Co., 291 NLRB 344 (1988). See also Lassen Community
Hospital, 278 NLRB 370, 374 (1986).
even consider’’ asking Hendrix if he would quit his union
job should Respondent hire him.
Imdieke, citing Hendrix’s position with the Union and Re-
spondent’s stated perception that he was interested only in
being a foreman, likewise testified that he ‘‘couldn’t take’’
Hendrix’s application ‘‘seriously.’’
Rose testified that he did not hire Haugen because:
At that time, I had made a decision . . . to hire Ray
Gauthier or Jerry Jones and Newell Casavant. And,
also, at that time there was rumblings that there would
be some transfers coming up [from Respondent’s other
projects]. Mountain Home [Idaho] was running out of
work. But, right at that very specific time, I needed ten
people.
Casavant, Gauthier, and Jones all ‘‘walked in’’; that is,
they applied independently of the State Employment Service,
the Union, or any other referral source. Rose testified that he
told Casavant ‘‘on the first of December’’ that he could have
a job; that he made similar commitments to Gauthier and
Jones on December 15 and 27, respectively; and that he con-
sidered the three hired as of those times. Respondent’s
records and Rose’s affidavit state, however, that Casavant
was hired on January 4, Gauthier on December 30, and Jones
on December 28.
Casavant testified that, while Rose told him in ‘‘the first
part of December’’ that he ‘‘probably’’ could start on Janu-
ary 3 or 4, Rose did not confirm that until January 3, when
he told Casavant to report the next day. Casavant further tes-
tified that he quit his former job on December 23 because
he was ‘‘tired’’ of it and ‘‘thought [he] had a pretty good
chance of getting this job’’ with Respondent. Jones testified
that Rose told him on December 27 or 28 to ‘‘come in and
fill out some paperwork’’; and that he complied on Decem-
ber 28, at which time Rose directed him to report on January
3. Gauthier did not testify.
As previously noted, Respondent hired only former em-
ployees to meet its journeyman needs after January 3–4. The
first of these was Junior Sam, who began on January 15. He
was followed on February 6 by Willard King, on February
15 by Mike Froseth, and on February 16 by Jim Wirt. They
had been on projects recently completed in either Mountain
Home, Idaho, or Fallon, Nevada.
Rose testified, concerning the staffing of jobs: ‘‘I usually
call the unemployment office. That’s a standard procedure to
pick up help from.’’ Another ‘‘standard procedure,’’ he testi-
fied, is to ‘‘talk to different people to see if there is, within
the company, . . . people who are going to be coming in’’
from other projects. His affidavit states that past employees
‘‘would be given first preference if they want to move here
on their own.’’ But Rose admittedly did not follow this latter
procedure incidental to assembling the early January crew.
Imdieke testified that Respondent ‘‘prefer[s] transfers’’
over strangers; that his ‘‘concern’’ as projects are ‘‘shutting
down,’’ is to ‘‘keep them working’’; and, with that in mind,
that he discusses staffing with Johnson several times a
week—what is ‘‘coming up,’’ what is ‘‘shutting down,’’
‘‘where people are available, where they aren’t.’’15 Asked
why Respondent had hired no former employees for the
Silverdale project before Sam, Imdieke testified that ‘‘you
have to have the need and you have to have the avail-
ability,’’ and that ‘‘a little of both’’ was lacking earlier.
In mid-February, Respondent increased its employees’
workweek to include 8 hours of overtime. Jones testified that
Rose explained:
[W]e’re not going to hire any more people. We’re
going to try and do it the way that we’ve been going.
We like the crew and we like what’s going on and . . .
we’re just going to start going on overtime.
Rose testified that the reason for the change was ‘‘to elimi-
nate peaks and valleys in employment,’’ and that he,
Imdieke, and John Chapin, Respondent’s president, partici-
pated in the underlying deliberations.
Rose previously had told Jones that Respondent ‘‘does not
practice, as a rule, overtime,’’ and would be unlikely to do
so at Silverdale ‘‘unless Penney’s picks up the tab.’’ Rose
acknowledged that Penney’s ‘‘did not volunteer at any time
to pick up any overtime,’’ and that ‘‘it’s a known fact that
overtime does not pay.’’
B. Conclusions and Reasons
1. The alleged independent violations of Section 8(a)(1)
(a) That Rose asked an applicant, in November, if he
was ‘‘connected with a union’’
(b) Said there was ‘‘no way [he] would hire any
union people’’
Crediting Jones, he told Rose in late November that he
had gained his experience ‘‘through the Union,’’ prompting
Rose to ask if he was ‘‘still affiliated with the Union’’ and
how he felt ‘‘about working for a nonunion shop.’’ Jones re-
plied that he had ‘‘hard feelings against’’ the Union and no
longer was a member, to which Rose remarked, ‘‘Well, you
don’t have to worry, because Willmar Electric is nonunion
and it intends on staying nonunion.’’16
The Board decreed in Rossmore House17 that the test for
determining the legality of an interrogation is ‘‘whether
under all the circumstances the interrogation reasonably tends
to restrain, coerce, or interfere with rights guaranteed by the
Act.’’18 Since Rossmore House, the Board has reiterated its
long-held position ‘‘that questions concerning union pref-
erence, in the context of job application interviews, are inher-
ently coercive and unlawful, even when the applicant is
hired.’’19 The conversation in which the subject questions
were asked, occurring a few days after Jones had left off his
application and before he was hired, was in the nature of a
job interview. Rose therefore violated Section 8(a)(1) as al-
leged by asking those questions.
252 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 L. W. Le Fort Co., 290 NLRB 344 (1988); Big Star No. 185, 258 NLRB
300 (1981); Love’s Barbecue Restaurant No. 62, 245 NLRB 78, 80, 83 (1979).
21 Instead of refuting Haugen, Rose testified unresponsively when asked if
he had inquired about Haugen’s union status. The denial in his affidavit does
not offset Haugen’s convincing testimony on the point.
22 See fn. 19, supra, and accompanying text.
23 Hendrix’s testimony in this regard was altogether convincing. Beyond
that, Rose did not enter an explicit denial, testifying only that he could not
recall saying Hendrix ‘‘would not be hired because he picketed.’’ The explicit
denial in his affidavit, standing alone, deserves little credence.
24 That he was picketing in the course of his employment with the Union
makes no difference. H. B. Zachry Co., 289 NLRB 838, 840 fn. 4 (1988).
25 E.g., California Cooperative Creamery, 290 NLRB 355 (1988); Haco En-
gineering Co., 265 NLRB 27 (1982).
26 While testifying that the sign was not calculated to thin out union-member
applicants, Rose did not deny making this remark. Jones was altogether con-
vincing in any event.
27 Rose in effect admitted doing this.
28 Rose’s depiction.
29 Scotto’s I.G.A., 249 NLRB 909 (1980). The Board there affirmed the ad-
ministrative law judge’s finding of a violation on facts similar to the present.
See also Bohemia, Inc., 266 NLRB 761 (1983).
30 251 NLRB 1083, 1089 (1980). This formulation received Supreme Court
approval in NLRB v. Transportation Management Corp., 464 U.S. 393 (1983).
31 That Hendrix was a paid, full-time union organizer, intent upon orga-
nizing Respondent’s employees, is of no moment. H. B. Zachry Co., supra at
fn. 24.
Further, by stating to Jones Respondent’s resolve to stay
nonunion, Rose necessarily conveyed the impression that an
applicant’s being openly prounion not only would be point-
less, but would prejudice his job prospects. So doing, he ad-
ditionally violated Section 8(a)(1) substantially as alleged.20
(c) That Rose asked an applicant, on about December
28, if his previous employers ‘‘were union contractors’’
Crediting Haugen, Rose asked him, when he turned in his
application on December 28, if his past employers were
unionized.21 This was a thinly veiled inquiry into Haugen’s
union feelings; and, occurring in the context of a job inter-
view, was inherently coercive in violation of Section
8(a)(1).22
(d) That Rose told an applicant, on about December
30, that it would be ‘‘hard to hire’’ him, and that Rose
‘‘would not do so,’’ because the applicant had picketed
the jobsite
Crediting Hendrix, Rose told him during a telephone con-
versation on December 30 that he had not ‘‘considered’’
Hendrix’s application because ‘‘it’s kind of hard to hire you
when you’re out there on the other side, picketing.’’23
Hendrix, when picketing to protest Respondent’s wage and
benefit levels, was an ‘‘employee’’ within Section 2(3) of the
Act, engaged in an activity protected by Section 7.24 Rose’s
remarks, by inherently tending to restrain Hendrix from en-
gaging in that and similar activities, violated Section 8(a)(1)
as alleged.25
(e) That Rose asked an employee, on January 9, if he
knew their ‘‘little union buddy’’ Hendrix
Crediting the uncontroverted testimony of then-employee
Lafayette (Dean) Brooks, Rose asked him on January 9 if he
knew Hendrix. Brooks, not knowing Hendrix by name, asked
who that was. Rose answered, ‘‘Our little union buddy.’’
Hendrix had engaged Brooks in conversation the previous
workday, while handbilling at the site.
Brooks reasonably could have inferred (as do I) that
Rose’s purposes in asking the question were to apprise him
that his tete-a-tete with Hendrix had not gone unnoticed and
to elicit information indicative of Brooks’ union sympathies.
The record contains no evidence that Brooks was openly
prounion, whereas Respondent’s antipathy to the Union was
manifest. I therefore conclude, applying the totality-of-cir-
cumstances test mandated by Rossmore House, that Rose’s
question bore a restraining and coercive impact in violation
of Section 8(a)(1).
(f) That Rose told an employee on about January 16,
that a no-applicants sign ‘‘was intended only for
applicants affiliated with a union’’
Crediting Jones’ uncontroverted testimony, Rose asked
him in mid-January if he knew someone Respondent might
hire. Jones answered, ‘‘Yes, but your sign says that you’re
not taking applications.’’ Rose rejoined that the sign was
‘‘just for the Union’s benefit.’’26
By thus declaring Respondent’s aversion to union-con-
nected applicants, Rose violated Section 8(a)(1) as alleged.
(g) That Rose asked an employee, on about February
7, ‘‘if he had been contacted by an agent
of the Board’’
Again crediting Jones, Rose told him on February 7 that
an NLRB agent had called a coworker, Casavant; then asked
Jones if the agent had called him.27
Interrogations of this sort, even under the guise of ‘‘com-
mon jobsite banter,’’28 tend to dampen employee cooperation
with Board investigations unless accompanied by assurances
against retribution. They consequently work to diminish em-
ployee rights under the Act. Accordingly, Rose’s question
violated Section 8(a)(1) as alleged.29
2. The alleged violations of Section 8(a)(3) and (1)
(a) Guiding Principles
The Board stated in Wright Line:30
[W]e shall henceforth employ the following causation
test in all cases alleging violation of Section 8(a)(3) or
violations of Section 8(a)(1) turning on employer moti-
vation. First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a ‘‘motivating fac-
tor’’ in the employer’s decision. Once this is estab-
lished, the burden will shift to the employer to dem-
onstrate that the same action would have taken place
even in the absence of protected conduct.
(b) Hendrix
I conclude that the General Counsel has made the requisite
prima facie showing that Respondent’s failure to hire
Hendrix violated Section 8(a)(3) and (1).31 My reasons for
this conclusion are:
1. Hendrix quite obviously is a competent journeyman,
and his application preceded those of the local-area journey-
men who were hired.
253WILLMAR ELECTRIC SERVICE
32 Crediting Macomber’s convincing and uncontroverted account.
33 Citing Indian Head Lubricants, 261 NLRB 12, 18 (1982), the General
Counsel argues that Respondent’s union animus also is shown by the remarks
of Rose’s son, Todd. I need not address that in light of abundance of other
indicia.
34 Crediting Casavant’s unchallenged testimony.
35 As I earlier conclude, this remark was unlawful. See text accompanying
fn. 25, supra.
36 The record being devoid of evidence that Hendrix applied in bad faith,
with no intention of taking a job if offered.
37 H. B. Zachry Co., supra.
38 Crediting Haugen. Rose recalled saying, ‘‘Good,’’ and inviting Haugen to
come to the site. I do not credit Rose that he told Haugen, after he had filled
out an application, that Respondent ‘‘didn’t need any more journeyman elec-
tricians’’ because he had ‘‘made up [his] mind who [he] was going to hire.’’
That testimony was not convincingly rendered, and, as is elsewhere noted,
conflicts with the information Rose gave to the employment service on De-
cember 27, to Hendrix on December 30, and to Joseph Lesh in early January.
39 Lesh, uncontroverted, is credited.
40 Crediting Casavant. Respondent states in its brief that Casavant testified
‘‘that he had been offered employment in early December and that he quit
his other job in reliance upon that offer.’’ This is not accurate. Casavant testi-
fied, as earlier set forth, that Rose told him in early December that he ‘‘prob-
ably’’ could start on January 3 or 4, and that he quit his job on December
23 because he was ‘‘tired’’ of it and ‘‘thought [he] had a pretty good chance
of getting this job’’ with Respondent.
41 As I earlier conclude, this interrogation was unlawful. See text accom-
panying fn. 22, supra.
2. Respondent apparently has a policy against hiring
known union members. The record contains no evidence that
any of those hired for the project in question was a member;
Rose pointedly extracted information from applicants about
their membership and sympathies, presumably as a
winnowing tool; and Imdieke’s initial response, when asked
if Respondent ever hired union members, was, ‘‘That’s a
tough one.’’ Even more revealing, Rose told Jones that the
no-applicants sign was ‘‘just for the Union’s benefit,’’ and
he advised Macomber that Respondent ‘‘couldn’t accept ap-
plications from a labor organization.’’32
3. Respondent’s resolute antiunionism also is revealed by
Rose’s telling Hendrix in their early conversations that it was
‘‘nonunion and wanted to stay that way’’; and by his later
saying much the same to Jones.33
4. Hendrix gave Respondent cause to believe he would be
an aggressive and dedicated organizer. Beyond being paid to
organize, he proposed to Imdieke and Rose that Respondent
enter into an agreement with the Union, he urged them to
use the Union as a manpower source and submitted applica-
tions on behalf of a number of members, he picketed and
leafleted to protest Respondent’s wage and benefit levels,
and he candidly told Rose that, if hired, he would organize
during nonwork time.
5. Respondent plainly saw Hendrix as an organizational
threat. Thus, Rose entered in his log after their first meeting
that Hendrix gave him ‘‘the impression that’’ the Union had
‘‘targeted [Respondent] for infiltration of union members’’;
Rose discussed ‘‘the union issue’’ with Imdieke and Johnson
after his second conversation with Hendrix, and they decided
not to give out applications ‘‘until all angles have been
checked’’; Rose and Johnson had a follow-up conversation
dealing with ‘‘hiring policies concerning union help, dis-
crimination’’; Imdieke conferred with Respondent’s labor
counsel before answering Hendrix’s request for an applica-
tion; Rose forwarded only Hendrix’s application to Imdieke,
whereupon Imdieke again conferred with labor counsel; Rose
told Casavant, when Casavant submitted his application, that
Hendrix had ‘‘come by’’ and Respondent ‘‘might be going
union’’;34 Rose told Hendrix he ‘‘wouldn’t like’’ his orga-
nizing during nonwork time, were he to be hired; and Rose
questioned Brooks whether he knew Hendrix, whom he iden-
tified as ‘‘our little union buddy,’’ after Hendrix had engaged
Brooks in conversation while leafleting at the jobsite.
6. By telling Hendrix on December 30 that, although Re-
spondent was then hiring, his application had not been con-
sidered because ‘‘it’s kind of hard to hire you when you’re
out there on the other side, picketing,’’ Rose effectively ad-
mitted that Hendrix’s protected activities were a factor in his
nonhire.35
I further conclude that Respondent has failed to overcome
the prima facie showing. As Respondent states in its brief,
incorporating Rose’s and Imdieke’s testimony, its principal
reason ‘‘for refusing to hire Hendrix was that neither Rose
nor Imdieke took his application seriously . . . since it was
submitted pursuant to, and in furtherance of his full-time
union employment responsibilities.’’ This is an admission on
improper motive.36 Far from overcoming the prima facie
case, it bestows conclusivity.37
Respondent contends that it had an additional, less basic,
reason for not hiring Hendrix—that he had indicated on his
application that he was interested only in a foreman’s job,
and none was available. As earlier noted, Hendrix entered
‘‘Journeyman-Foreman Electrician’’ where the application
asked for ‘‘Position Desired.’’ Rose never sought clarifica-
tion from Hendrix about this, however, which he surely
would have done, given the equivocal form of the entry, had
he an open mind about Hendrix; and the weight of evidence
is overwhelming that the application would not have been
taken any more seriously had Hendrix written ‘‘Journeyman
Electrician.’’
(c) Haugen
I conclude that the General Counsel also has made a prima
facie showing that Respondent’s failure to hire Haugen vio-
lated Section 8(a)(3) and (1). My reasons for so concluding,
in addition to the previously detailed indicia that Respondent
has a policy against hiring known union members and other-
wise is ardently antiunion, are:
1. Haugen, like Hendrix, apparently is a competent jour-
neyman.
2. The weight of evidence reveals that Respondent was
still seeking journeymen when Haugen applied on December
28, and for at least several days after. Thus, when Haugen
first told Rose on December 28 that he is a journeyman,
Rose exclaimed, ‘‘Oh, great!’’ and urged Haugen to apply
‘‘right away’’;38 then, on December 30, Rose told Hendrix
he was ‘‘looking for guys’’; and Rose informed journeyman
Joseph Lesh in early January that he ‘‘would be hiring.’’39
Additionally, Rose informed the employment service on De-
cember 27 that he invited the referral of ‘‘journeymen and
other experienced electricians,’’ leaving that directive undis-
turbed until January 13; and one of the local-area journey-
men hired by Respondent, Casavant, did not receive con-
firmation of his hire until January 3.40
3. Rose’s asking Haugen if his past employers were union-
ized was, as previously observed, ‘‘a thinly-veiled inquiry
into Haugen’s union feelings;’’41 and, from Haugen’s affirm-
254 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 All outstanding motions inconsistent with this recommended Order are de-
nied. If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Order
shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and
all objections to them shall be deemed waived for all purposes.
43 Backpay shall be computed as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). Under New Horizon, interest is computed at
the ‘‘short-term Federal rate’’ for underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
44 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ative response, Rose had reason to surmise that he is a mem-
ber.
I conclude, finally, that Respondent has not overcome the
prima facie showing. Its defense is based on Rose’s testi-
mony that he ‘‘had made up [his] mind’’ before December
14 ‘‘who [he] was going to be putting on as a journeyman,’’
and that he had made commitments to the three hired on De-
cember 1 (Casavant), December 15 (Gauthier), and Decem-
ber 27 (Jones). That story is fundamentally impeached, how-
ever, by the considerable evidence, summarized above, that
Rose was still seeking journeymen when Haugen applied on
December 28, and for some days thereafter; by the records
of the employment service, which disclose that he advised it
on December 14 that Respondent ‘‘need[ed] journeymen and
other experienced electricians’’; and by the passage in his af-
fidavit that he ‘‘was actually looking for . . . 5 journeymen’’
when he placed the December 14 order with the employment
service.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(3) and (1) by failing
to hire Michael C. Hendrix and Allen Haugen, effective Jan-
uary 3, 1989.
2. Respondent, by its project foreman, Douglas Rose, fur-
ther violated Section 8(a)(1) as follows:
(a) In late November 1988, by asking applicant Jerry Jones
if he was ‘‘still affiliated with the Union’’ and how he felt
‘‘about working for a nonunion shop.’’
(b) In late November 1988, by telling Jones that Respond-
ent ‘‘is nonunion and it intends on staying nonunion.’’
(c) On December 28, 1988, by asking Haugen if his past
employers were unionized.
(d) On December 30, 1988, by telling Hendrix that he had
not ‘‘considered’’ Hendrix’s application because ‘‘it’s kind
of hard to hire you when you’re out there on the other side,
picketing.’’
(e) On January 9, 1989, by asking employee Lafayette
(Dean) Brooks if he knew Hendrix, ‘‘our little union
buddy.’’
(f) In mid-January 1989, by telling Jones that a no-appli-
cants sign was ‘‘just for the Union’s benefit.’’
(g) On February 7, 1989, by asking Jones if an NLRB
agent had called him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended42
ORDER
The Respondent, Willmar Electric Service, Inc., Silverdale,
Washington, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to hire Michael C. Hendrix, Allen Haugen, or
any other statutory employee because of their sympathies or
activities on behalf of International Brotherhood of Electrical
Workers, Local Union No. 46, or any other labor organiza-
tion.
(b) Interrogating job applicants about their union affili-
ations, their feelings about working for a nonunion employer,
or whether their past employers were unionized.
(c) Telling job applicants that Respondent is nonunion and
intends to stay nonunion.
(d) Telling job applicants that it has not considered their
applications because of their union activities.
(e) Coercively interrogating employees whether they know
certain officials of International Brotherhood of Electrical
Workers, Local Union No. 46, or any other labor organiza-
tion.
(f) Telling employees that a no-applicants sign is ‘‘just for
the Union’s benefit.’’
(g) Coercively interrogating employees, during the pend-
ency of an unfair labor practice charge against Respondent,
whether they had been called by an NLRB agent.
(h) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights pro-
tected by the Act.
2. Take this affirmative action necessary to effectuate the
policies of the Act.
(a) Offer Michael C. Hendrix and Allen Haugen full and
immediate employment in the positions, or their substantial
equivalents, in which they would have been employed, effec-
tive January 3, 1989, but for Respondent’s unlawful discrimi-
nation against them, without prejudice to any seniority or
other rights or privileges they would have acquired; and
make them whole, with interest where appropriate, for any
losses of earnings and benefits suffered as a result of that
discrimination.43
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its J. C. Penny project in Silverdale, Wash-
ington, and at its headquarters in Wilmar, Minnesota, copies
of the attached notice marked ‘‘Appendix.’’44 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
255WILLMAR ELECTRIC SERVICE
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The trial held in Seattle, Washington, on April 6–7, 1989, in
which we participated and had a chance to give evidence, re-
sulted in a decision that we have committed unfair labor
practices in violation of Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, and this notice is pursuant to that
decision.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail to hire Michael C. Hendrix, Allen
Haugen, or any other statutory employee because of their
sympathies or activities on behalf of the International Broth-
erhood of Electrical Workers, Local Union No. 46, or any
other labor organization.
WE WILL NOT interrogate job applicants about their union
affiliations, their feelings about working for a nonunion em-
ployer, or whether their past employers were unionized.
WE WILL NOT tell job applicants that we are nonunion and
intend to stay nonunion.
WE WILL NOT tell job applicants that we have not consid-
ered their applications because of their union activities.
WE WILL NOT coercively interrogate employees whether
they know certain officials of International Brotherhood of
Electrical Workers, Local Union No. 46, or any other labor
organization.
WE WILL NOT tell employees that a no-applicants sign is
‘‘just for the Union’s benefit.’’
WE WILL NOT coercively interrogate employees, during the
pendency of an unfair labor-practice charge against us,
whether they had been contacted by an NLRB agent.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
protected by the Act.
WE WILL offer Michael C. Hendrix and Allen Haugen full
and immediate employment in the positions, or their substan-
tial equivalents, in which they would have been employed,
effective January 3, 1989, but for our unlawful discrimina-
tion against them, without prejudice to any seniority or other
rights or privileges they would have acquired; and WE WILL
make them whole, with interest, for any losses of earnings
and benefits suffered as a result of that discrimination.
WILLMAR ELECTRIC SERVICE, INC.